Posted May 20th, 2020.
Now that a high-profile gender bias suit against the firm is partly advancing, the spotlight will turn to how the firm makes decisions about compensating and promoting junior attorneys.
By Dan Packel
Over a year ago, two California attorneys launched a proposed gender-bias class action filled with sordid details about how Jones Day allegedly treats its female associates. The list of women attaching their names to the suit rose to six, while the swelling docket also grew to include a sanctions motion against the attorneys who brought the case.
On Tuesday, a federal judge weighed in on the substance of their allegations for the first time.
While U.S. District Judge Randolph Moss of the District of Columbia dismissed some claims alleging a hostile work environment at Jones Day and others relying on the Equal Pay Act, he advanced claims focusing on the firm’s system of evaluating associates, which hit directly at the firm’s “black box” compensation model.
“Plaintiffs have challenged four policies—the ‘No Whining’ policy, the pay secrecy policy, the subjective evaluation system, and the hyper-centralization of pay and promotion decisions at the hands of managing partner Steve Brogan,” Sanford Heisler Sharp partner Kate Mueting, who represents the plaintiffs, said in an email. “The court allowed all of these challenges to proceed, and plaintiffs will proceed to discovery on all of them, including the evaluation policy.”
That could sound a warning for other firms that rely on subjective measures for assessing the performance of their junior attorneys.
A swath of Moss’ 88-page opinion turned upon allegations that Jones Day relies on “consensus statements” that are prepared by selecting feedback from some, but not all, individual evaluations and are then read to associates under review. These associates aren’t given copies of the statements or access to individual evaluations, nor are they permitted to challenge these statements, the plaintiffs say.
“It is plausible, for example, that the ‘consensus statements,’ which plaintiffs allege are ‘easily manipula[ted]‘ and allow for ‘cherry pick[ing]‘ of content from the various underlying reviews, shape an overall picture of an associate that is both inaccurate and disadvantageous to women associates,” Moss said. “It is also plausible that the ‘No Whining’ or the ‘Pay Secrecy’ policy caused continued disparities by closing natural feedback channels.”
That suggests that the case, as it advances, will turn in large part on the propriety of the firm’s mode of evaluating associates.
The catch, for the plaintiffs, is that trying to prove a subjective practice is discriminatory is much more difficult than demonstrating the same proof for an objective practice, said Vanderbilt University Law School professor Jennifer Shinall.
“Take an interview, the paradigm of a subjective hiring practice. It’s always going to be very easy for an employer to say, ‘The person I ultimately hired just interviewed better,’” she said. “It’s very hard to prove discrimination on subjective hiring practices just because they’re open to interpretation.”
Nonetheless, the court’s decision should give some pause to other firms that rely on similarly opaque processes to make decisions about promotion and compensation for associates, said University of Virginia School of Law professor J.H. “Rip” Verkerke—even if a full reckoning will have to wait.
“It’s important to remember, however, that this ruling simply denies a motion to dismiss,” he said in an email. “I’d expect this litigation to continue for another year or two before it’s close to being resolved.”
Another factor that might stand in the way of self-reflection elsewhere in the industry are the allegations in the lawsuit that go beyond the evaluation process. The original complaint, for example, depicts multiple instances of what plaintiffs claim was a “frat house” culture at the firm.
“One other thing that certainly harms Jones Day and will give other law firms a way of dismissing Jones Day as different is the fact that there all of these documented anecdotes regarding treatment of women at Jones Day across offices,” Shinall said.
Also unusual: the outsized role that longtime managing partner Brogan allegedly plays in all compensation decisions.
“It’s striking that the managing partner wielded such unbelievable power,” Shinall added.
A spokesman for the firm did not immediately respond to a request for comment.